Nuckel v. City of Yonkers

133 A.D.2d 226, 518 N.Y.S.2d 772, 1987 N.Y. App. Div. LEXIS 49728

Opinion

In a hybrid proceeding pursuant to CPLR article 78 and action for a declaratory judgment, inter alia, (1) to review a determination of the Mayor of the City of Yonkers dated August 3, 1987, which declared the office of the Councilmember for the Third Ward for the City of Yonkers to be vacant and appointed John Michael Drobnak to said office, and (2) to declare that the petitioner lawfully occupies the office of the Councilmember for the Third Ward, the petitioner, and the City of Yonkers, Aloysius Moczydlowski and Rene Frayman separately appeal from a judgment of the Supreme Court, Westchester County, dated August 19, 1987, which, inter alia, declared that John Michael Drobnak is the duly appointed Councilmember for the Third Ward and dismissed the proceeding pursuant to CPLR article 78.

Ordered that the judgment is affirmed, without costs or disbursements, for reasons stated by Justice Dachenhausen in his memorandum decision.

In addition, we note that the Mayor’s authority to fill a vacancy in the office of Councilmember without the advice and consent of the Yonkers City Council is provided for in Yonkers City Charter § C3-5, as well as Second Class Cities Law § 15, both of which are consistent with Yonkers City Charter § 3-7 (B). Mollen, P. J., Brown, Niehoff and Rubin, JJ., concur.